New York Law Review

Tag: abandonment

  • Venigalla v. Alagappan, 96 N.Y.2d 53 (2001): Abandonment of Corporate Bylaws

    Venigalla v. Alagappan, 96 N.Y.2d 53 (2001)

    A corporation’s bylaws can be deemed abandoned and abrogated if they are not used for a considerable time and this non-use is acquiesced to by the corporation’s members.

    Summary

    The Hindu Temple Society of North America adopted bylaws in 1970 calling for the election of trustees by its members, but these bylaws were never implemented and were later forgotten. For three decades, the Society was governed by a self-perpetuating board of trustees under bylaws adopted in 1978. In 2001, some members rediscovered the 1970 bylaws and demanded elections. The New York Court of Appeals held that the 1970 bylaws were invalid because they contradicted the Religious Corporations Law, which governs the Society, and because they had been abandoned due to long-term non-use and acquiescence.

    Facts

    The Hindu Temple Society of North America incorporated in 1970 under Article 9 of the Religious Corporations Law. In 1970, the Society adopted bylaws requiring the election of trustees by its members. These bylaws were never implemented or referenced. The Society operated from its inception with a self-perpetuating board of trustees, as outlined in bylaws adopted in 1978. The 1978 bylaws gave the Board of Trustees the function of final selection and appointment of its own members. Members of the Society did not challenge the validity of the 1978 bylaws until 2001.

    Procedural History

    In 2001, Society members petitioned for the removal of the board of trustees. Petitioners later discovered the 1970 bylaws and presented them to the Supreme Court as an alternative basis for relief. The Supreme Court initially treated the 1978 bylaws as valid amendments to the 1970 bylaws. The Appellate Division reversed, holding that the 1970 bylaws were never properly amended, voided the post-1970 bylaws, and directed an election. After a new election which yielded a similar board, the trustees appealed. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

    Issue(s)

    1. Whether the Society’s 1970 bylaws, which called for the election of trustees by the general membership, were valid given the Society’s incorporation under Article 9 of the Religious Corporations Law. 2. Whether the Society’s 1970 bylaws could be considered abandoned due to non-use and acquiescence by the Society’s members.

    Holding

    1. No, because Article 9 of the Religious Corporations Law provides for self-perpetuating boards of trustees, not boards elected by the general membership. 2. Yes, because the bylaws were not used for a considerable length of time, and this non-use was acquiesced to by the members of the Society.

    Court’s Reasoning

    The Court reasoned that the 1970 bylaws conflicted with Article 9 of the Religious Corporations Law, which governs the Society. Article 9 provides for self-perpetuating boards, where vacancies are filled by the remaining trustees, and does not require elections by the general membership. The Court also determined that the 1970 bylaws had been abandoned. Citing Pomeroy v. Westaway, the Court stated that “nonusage of a by-law, continuing for a considerable length of time, and acquiesced therein, will work its abrogation.” The Court found that the 1970 bylaws fell into “complete desuetude” for three decades, with the Society being run according to the 1978 bylaws. The Court emphasized that to allow petitioners to revive the 1970 bylaws after such a long period of non-use would be “unwise and unfair.” The Court also pointed out a founder of the society stating, “it will be self-defeating” if a temple “is organised as a cultural society with annual elections, [and] continuous change in officials …. High level people will not join if they have to stand for elections. Decision-making with clear-cut responsibility are [sic] difficult if subjected to general body meetings.”

  • In re Adam HH., 4 N.Y.3d 550 (2005): Parental Rights Termination and Abandonment

    In re Adam HH., 4 N.Y.3d 550 (2005)

    A parent’s rights can be terminated for abandonment if they fail to contact the child or the relevant agency for six months prior to the filing of an abandonment petition, demonstrating an intent to forego parental rights, and the agency is not required to demonstrate diligent efforts to encourage the parent’s relationship with the child in such abandonment cases.

    Summary

    This case concerns the termination of a father’s parental rights based on abandonment. The New York Court of Appeals affirmed the lower courts’ decisions, finding clear and convincing evidence that the father, Adam HH., abandoned his child by failing to contact either the child or the Department of Social Services (DSS) for six months before the abandonment petition was filed. The Court emphasized that in abandonment cases, DSS isn’t required to prove it made diligent efforts to encourage the parental relationship. The Court also noted the father’s history of disregarding parental obligations and that the protective order did not prevent him from contacting DSS.

    Facts

    Adam HH. is the biological father of the child in question. He had a history of abusing the biological mother and violating orders of protection. He also refused to submit to a court-ordered mental health evaluation. Crucially, he had no contact with either the child or the DSS for the six months leading up to the filing of the abandonment petition.

    Procedural History

    The Family Court initially terminated Adam HH.’s parental rights based on abandonment. The Appellate Division affirmed this decision. Adam HH. then appealed to the New York Court of Appeals, which also affirmed the lower courts’ rulings.

    Issue(s)

    Whether the lower courts erred in terminating Adam HH.’s parental rights based on abandonment, given his claim that a protective order prevented him from contacting the child and the agency, and whether the Department of Social Services was required to demonstrate diligent efforts to encourage his relationship with the child.

    Holding

    No, because there was clear and convincing evidence of abandonment based on Adam HH.’s failure to contact the child or the agency for six months, demonstrating intent to forego parental rights, and the protective order did not prevent him from contacting DSS. No, because in abandonment cases, the Social Services Law does not require a showing of diligent efforts by the authorized agency to encourage the parent to maintain contact.

    Court’s Reasoning

    The Court of Appeals based its decision on Social Services Law § 384-b [5] [a], which states that a lack of contact with the child or the agency for six months prior to filing the abandonment petition evinces an intent to forego parental rights. The Court also cited Social Services Law § 384-b [5] [b], noting that diligent efforts by DSS are not required in abandonment cases. The court found that the father’s claim that the order of protection prevented him from contacting DSS was not supported by evidence in the record. The Court emphasized that “the burden rests on the parent to maintain contact” (Matter of Julius P., 63 NY2d at 481). The court further reasoned that the father’s consistent disregard for his parental obligations, including abuse of the mother and refusal to undergo a mental health evaluation, supported the finding of abandonment. The agency, by clear and convincing evidence, demonstrated abandonment which sufficed for termination of parental rights. In short, the court affirmed the Family Court and Appellate Division rulings since there was sufficient evidence supporting abandonment and no legal requirement that the agency needed to show diligent effort.

  • People v. West, 100 N.Y.2d 23 (2003): Abandonment of Right to Appeal Due to Delay

    100 N.Y.2d 23 (2003)

    A defendant abandons the right to appeal when they fail to perfect the appeal in a timely manner, despite being informed of their appellate rights and the process for seeking poor person relief.

    Summary

    The case concerns whether the defendant abandoned his right to appeal his conviction for rape and sodomy because he failed to perfect his appeal for over 14 years. The New York Court of Appeals held that he did abandon his right to appeal. The Court reasoned that the right to appeal is a statutory right that must be affirmatively exercised and timely asserted. Despite being informed of his appellate rights and how to apply for poor person relief, the defendant repeatedly attempted to bypass the state appellate process by filing petitions seeking federal habeas corpus relief. The Court found no due process violation in requiring the defendant to apply for legal representation.

    Facts

    The defendant was convicted of rape and sodomy in the first degree and adjudicated a persistent felony offender. He was advised of his right to appeal, including written notice of how to proceed as a poor person. He filed a timely notice of appeal. The defendant also moved pro se for copies of transcripts, alleging indigence. He filed multiple unsuccessful federal habeas corpus petitions before attempting to perfect his state appeal.

    Procedural History

    The defendant was convicted and sentenced in the trial court. He filed a notice of appeal. He then filed multiple federal habeas corpus petitions, all of which were dismissed for failure to exhaust state remedies. Fourteen years after sentencing, he sought permission from the Appellate Division to prosecute his appeal as a poor person. The Appellate Division granted the People’s cross-motion to dismiss the appeal based on laches. Leave to appeal to the New York Court of Appeals was denied. After a federal court intervened, the Appellate Division again dismissed the appeal, concluding the defendant’s 14-year delay demonstrated abandonment. This decision was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant abandoned his right to appeal by failing to perfect his appeal for more than 14 years after being informed of his appellate rights.
    2. Whether an application for poor person relief is a critical stage of the proceeding to which the Sixth Amendment right to counsel attaches.

    Holding

    1. Yes, because the right to appeal is a statutory right that must be affirmatively exercised and timely asserted, and the defendant failed to pursue his appeal despite being informed of his rights and the necessary steps.
    2. No, because the Sixth Amendment does not encompass the right to counsel in appellate proceedings for poor person relief applications, and the information required for such applications is uniquely available to the appellant without the need for counsel.

    Court’s Reasoning

    The Court of Appeals reasoned that the right to appeal is a statutory right and must be timely asserted. The Court noted that the defendant was properly informed of his right to appeal and how to apply for poor person relief. The defendant’s repeated attempts to seek federal habeas corpus relief while neglecting his state appeal demonstrated an abandonment of his state appeal. The Court emphasized that assigned counsel is required to inform a defendant of their right to appeal after sentencing per 22 NYCRR 606.5 [b]; 671.3, 821.2 [a]; 1022.11 [a]. The court rejected the defendant’s argument that he was not informed of his right to seek poor person relief, citing the explicit instructions he received. The court also held that application for poor person relief is not a critical stage where the Sixth Amendment right to counsel attaches because the appellant need only advise the appellate court of income, its source(s), and a list of property owned and its value and “[t]his personal information is uniquely available to the appellant.”

  • Matter of Parkside Community Church, Inc. v. Zoning Bd. of Appeals of the Vil. of Dobbs Ferry, 66 N.Y.2d 967 (1985): Abandonment of Nonconforming Use Requires Complete Cessation

    66 N.Y.2d 967 (1985)

    A nonconforming use is only deemed abandoned when there has been a complete cessation of the nonconforming use.

    Summary

    This case addresses the issue of whether a property owner abandoned a nonconforming use by allowing one of two structures on the property to remain vacant for a period of years. The New York Court of Appeals held that abandonment of a nonconforming use requires a complete cessation of the entire nonconforming use, not just a portion of it. Because the other structure on the property remained in use, the nonconforming use was not abandoned. The Court modified the lower court’s order by removing the requirement that the matter be remitted to the Zoning Board of Appeals (ZBA) to determine if the petitioner was improperly extending or enlarging the structure.

    Facts

    Parkside Community Church owned a parcel of land in the Village of Dobbs Ferry with two structures: a three-family dwelling in the front and a one-family house in the rear. Prior to 1969, the owner lived in the one-family house and rented out the three-family dwelling. A zoning ordinance passed before 1969 made this use nonconforming, as it only permitted one two-family structure on the lot. Both dwellings continued to be occupied as nonconforming uses until 1969. From 1969 to 1984, the rear one-family house remained vacant, while the front three-family dwelling continued to be used. In 1984, Parkside Community Church purchased the property and applied for a permit to renovate the rear building.

    Procedural History

    The village building inspector denied Parkside Community Church’s application for a permit. The Zoning Board of Appeals (ZBA) affirmed the denial, stating that the use of the property for four families had been abandoned. The Supreme Court annulled the ZBA’s decision. The Appellate Division affirmed the Supreme Court’s judgment but remitted the matter to the ZBA to determine whether the petitioner’s application sought to improperly extend or enlarge the structure. The ZBA appealed to the New York Court of Appeals.

    Issue(s)

    Whether the vacancy of one of two dwellings on a property, where both dwellings contribute to a single nonconforming use, constitutes abandonment of the entire nonconforming use.

    Holding

    No, because abandonment does not occur unless there has been a complete cessation of the nonconforming use.

    Court’s Reasoning

    The court stated that abandonment requires a complete cessation of the nonconforming use. The court cited several cases in support of this proposition, including Matter of Daggett v Putnam, 40 AD2d 576; Baml Realty v State of New York, 35 AD2d 857; City of Binghamton v Gartell, 275 App Div 457, 460; and Barron v Getnick, 107 AD2d 1017, 1018. The court found that there was no evidence that the entire nonconforming use (use of the lot for more than one two-family structure) had been abandoned, since the three-family dwelling continued to be occupied. Therefore, the petition was properly granted and the determination of the ZBA annulled.

    The court also addressed the lower court’s decision to remit the matter to the ZBA to determine whether the petitioner’s application sought to improperly extend or enlarge the structure. In light of the fact that the petitioner’s application only sought to restore the rear structure to its former condition and the ZBA’s request that the matter not be remitted, the Court of Appeals modified the Supreme Court’s order by deleting the provision ordering such remittal.

  • Matter of Amy SS, 64 N.Y.2d 788 (1985): Parental Rights Termination Based on Abandonment

    Matter of Amy SS, 64 N.Y.2d 788 (1985)

    Domestic Relations Law § 111 (2)(a) allows for dispensing with a parent’s consent to adoption upon clear and convincing evidence of the parent’s intent to forego parental rights and obligations, even if there is a mere “flicker of interest”.

    Summary

    This case concerns the adoption of Amy SS and whether the biological father’s consent was required. The New York Court of Appeals reversed the Appellate Division, finding that the father’s failure to visit, communicate with, or support his child constituted clear and convincing evidence of an intent to abandon his parental rights. The court emphasized that the amendments to Domestic Relations Law § 111 were designed to ease the burden of proving abandonment and to override the “flicker of interest” test, thus facilitating adoptions where parents demonstrate a lack of sustained parental responsibility.

    Facts

    Amy SS was the subject of an adoption proceeding. The petitioners sought to dispense with the consent of the biological father, the respondent, based on his alleged abandonment of the child. Evidence was presented demonstrating the respondent’s failure to consistently visit, communicate with, or provide financial support for Amy. The respondent attempted to show some level of interest in the child’s life, but the petitioners argued this was insufficient to overcome the evidence of abandonment.

    Procedural History

    The Family Court initially ruled in favor of the petitioners, finding that the respondent had abandoned Amy SS and his consent to the adoption was not required. The Appellate Division reversed, presumably applying a stricter interpretation of the abandonment standard. The New York Court of Appeals then reversed the Appellate Division, reinstating the Family Court’s decision and granting the motion to dispense with the respondent’s consent.

    Issue(s)

    Whether the evidence presented by the petitioners constitutes clear and convincing evidence of the respondent’s intent to forego his parental rights and obligations, thereby justifying dispensing with his consent to the adoption of Amy SS under Domestic Relations Law § 111 (2)(a).

    Holding

    Yes, because the evidence of the respondent’s failure to visit, communicate with, or provide for the support of his child constitutes the type of clear and convincing evidence contemplated by Domestic Relations Law § 111 (2)(a) to show an intent to forego parental rights and obligations.

    Court’s Reasoning

    The Court of Appeals relied on Domestic Relations Law § 111 (2)(a), which allows dispensing with a parent’s consent to adoption if there is clear and convincing evidence of abandonment. The court found that the respondent’s actions, or lack thereof, demonstrated an intent to forego his parental rights and obligations. The court explicitly stated that the evidence presented by the petitioners “is precisely the type of clear and convincing evidence contemplated by Domestic Relations Law § 111 (2) (a) to show an ‘intent to forego * * * parental * * * rights and obligations’”.

    The court further clarified that the 1975 amendments to section 111 were designed to override the “flicker of interest” test, referencing Matter of Corey L v Martin L, 45 NY2d 383, 389. The court quoted, “the [1975] amendments to section 111 of the Domestic Relations Law were designed to override the ‘flicker of interest’ test and thereby ease the burden on the party seeking to prove abandonment”. This indicates a legislative intent to prioritize the child’s welfare and facilitate adoptions where a parent has demonstrably failed to fulfill their parental responsibilities, even if they express some minimal level of interest.

    The dissent in the Appellate Division, which the Court of Appeals aligned with, likely focused on the sufficiency of the evidence presented to demonstrate abandonment, given that such decisions are heavily fact-dependent. The Court of Appeals, in reversing, emphasized the importance of the statutory language and the intent behind the amendments to the Domestic Relations Law in easing the burden of proving abandonment.

  • Matter of Julius P., 481 N.Y.S.2d 326 (1984): Clarifying Agency Duty in Parental Rights Termination for Abandonment

    Matter of Julius P., 481 N.Y.S.2d 326 (1984)

    In proceedings to terminate parental rights based on abandonment, the social services agency has no affirmative duty to actively encourage contact between parent and child; its sole obligation is not to prevent or discourage such contact.

    Summary

    The Monroe County Department of Social Services sought to terminate a mother’s parental rights to her son, Julius P., based on abandonment. The Family Court dismissed the petition, arguing the Department had failed in its contractual obligation (per a voluntary placement instrument) to assist the mother in maintaining contact with her child. The Appellate Division reversed, finding overwhelming evidence of abandonment. The New York Court of Appeals affirmed the Appellate Division, holding that the placement instrument did not impose a duty on the agency greater than its statutory obligation and that the mother’s failure to maintain contact constituted abandonment.

    Facts

    Julius P. was born on August 6, 1969. The mother entrusted him to her own mother’s care until 1980, when the grandmother became ill. The mother then executed a voluntary placement agreement with the Monroe County Department of Social Services, periodically extended by court order. The child was placed in a children’s home and later in a foster home. The mother visited him sporadically in the children’s home. The agency informed her of Julius’s transfer to a foster home, at which time she wanted him returned to her. Discussions and appointments regarding the return of the child were arranged but the mother did not keep them. Caseworkers visited her home twice in August 1981 but were unable to find her. The agency sent letters in September, one of which was returned indicating she had moved. They located her new address and sent another letter, which was not returned. A certified letter was sent in October 1981, but she denied receiving it. From August 1981 to February 1982 (when the termination proceeding began), the mother did not visit or communicate with her son or the agency.

    Procedural History

    The Monroe County Department of Social Services filed a petition in Family Court to terminate the mother’s parental rights based on abandonment. The Family Court dismissed the petition, finding the agency had a contractual duty to assist the mother in maintaining contact, which it failed to fulfill. The Appellate Division reversed, holding the evidence supported a finding of abandonment and that the placement instrument imposed no duty beyond the agency’s statutory obligations. The New York Court of Appeals granted review.

    Issue(s)

    Whether the voluntary placement instrument executed between the mother and the Department of Social Services imposed a duty on the Department, beyond its statutory obligations, to actively encourage contact between the mother and her child, such that failure to fulfill this duty would preclude a finding of abandonment.

    Holding

    No, because the language of the placement instrument, consistent with Social Services Law § 384-a, merely advises the parent of their rights and obligations and does not expand the agency’s duty beyond what is defined in Social Services Law § 384-b, subd. 5, which prohibits the agency from interfering with parental contact but does not require diligent efforts to encourage it.

    Court’s Reasoning

    The Court of Appeals emphasized that under Social Services Law § 384-b, a child is considered abandoned when a parent demonstrates an intent to forego parental rights, evidenced by a failure to visit or communicate with the child or agency, despite being able to do so and not being prevented or discouraged by the agency. The burden is on the parent to maintain contact, and the agency is not obligated to exercise diligent efforts to encourage contact, only to avoid preventing or discouraging it. The court found that the language of the voluntary placement instrument, advising the parent of their right to visit and the importance of doing so, was consistent with the requirements of Social Services Law § 384-a, which aims to ensure parents are aware of their rights and responsibilities. However, the court explicitly stated that “the language expresses the general statutory policy of fostering the parent-child relationship by means available to the agency but it does not impose an added duty upon it to encourage contact between parent and child.” The court reasoned that allowing such instruments to expand the agency’s duty beyond the statutory framework would undermine the clear intent of the legislature. The Court cited Matter of Anonymous (St. Christopher’s Home), 40 NY2d 96, 102-103, further reinforcing that agencies do not have expanded duties. The court noted that subjective good faith on the part of the parent does not prevent a finding of abandonment, reinforcing the parent’s responsibility to maintain contact.

  • Marsh v. Levey, 55 N.Y.2d 864 (1981): Enforceability of Trade Name Restrictions Post-Dissolution

    Marsh v. Levey, 55 N.Y.2d 864 (1981)

    The filing of a certificate of dissolution of a corporation, without more, does not demonstrate abandonment of a trade name, especially when an agreement exists governing the rights to the trade name.

    Summary

    In a breach of contract action, the plaintiff, Marsh, sought to enforce a trade name restriction against the defendant, Levey, following the dissolution of a corporation. The defendant argued that the plaintiff waived any right to enforce the restriction by filing the certificate of dissolution. The Court of Appeals held that the dissolution, by itself, did not constitute abandonment of the trade name, particularly given the existence of an agreement between the parties governing its use. The Court reversed the Appellate Division’s order, granted judgment to the plaintiff on the issue of liability, and remitted the matter for further proceedings.

    Facts

    The plaintiff, Marsh, brought an action against the defendant, Levey, for breach of contract, seeking an injunction and damages related to the defendant’s use of a trade name. The plaintiff had the authority to enter into the contract of sale and was the distributee of all the corporation’s assets upon dissolution. The defendant’s sole defense was that the plaintiff’s filing of a certificate of dissolution waived any restriction on the defendant’s license to use the trade name.

    Procedural History

    The lower court ruled in favor of the defendant. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division’s order and remitted the case to the Supreme Court, Westchester County, for further proceedings, finding the defendant liable.

    Issue(s)

    Whether the filing of a certificate of dissolution of a corporation, without any further evidence, constitutes an abandonment of the corporation’s trade name, thereby relieving a party from contractual restrictions on the use of that trade name.

    Holding

    No, because the record did not support the assertion that the plaintiff abandoned the right to enforce the limitations on the use of the trade name. Further, the filing of a certificate of dissolution, without more, does not demonstrate abandonment of the trade name. Parties can alter common law rights concerning trade names through agreement.

    Court’s Reasoning

    The Court of Appeals reasoned that while rights in a trade name may be lost through abandonment, the defendant failed to demonstrate such abandonment by the plaintiff. The Court stated, “the record simply does not support defendant’s assertion that plaintiff abandoned whatever right existed to enforce the limitations on use of the trade name, nor can it be concluded, as defendant has argued, that the filing of a certificate of dissolution, without more, demonstrates abandonment of the trade name.”  The court emphasized the importance of the existing agreement between the parties, stating that the parties “could elect to alter those rights and have them governed instead by an appropriate agreement, which is apparently what the parties sought to do in this case.” The court distinguished this case from situations governed solely by common law principles of trade name usage. The court emphasized that parties are free to contractually alter their rights regarding trade names, and such agreements will be enforced. The court thereby reinforced the principle of freedom of contract and the enforceability of agreements governing trade name usage, even in the context of corporate dissolution. The decision provides clarity regarding the limited effect of a certificate of dissolution on trade name rights when those rights are also subject to contractual agreements.

  • Parkway Woods, Inc. v. Petco Enterprises, Inc., 68 N.Y.2d 658 (1986): Waiver of Standing Defense and Abandonment of Nonconforming Use

    Parkway Woods, Inc. v. Petco Enterprises, Inc., 68 N.Y.2d 658 (1986)

    A challenge to a petitioner’s standing in an Article 78 proceeding is waived if not raised in the responsive pleading or by pre-answer motion, and a nonconforming use is deemed abandoned when discontinued or not used for a specified period, regardless of the owner’s intent or lease agreements.

    Summary

    Parkway Woods, Inc. initiated an Article 78 proceeding to challenge the zoning board’s grant of a certificate of existing use to S.F. Shopping Center, Inc. for a gasoline service station. S.F. Shopping Center, Inc. failed to raise the issue of Parkway Woods, Inc.’s standing in its initial answer. The court held that the failure to raise the standing issue in the initial pleading constituted a waiver of that defense. Furthermore, the court determined that the zoning board’s finding that the nonconforming use (gas station) had not been abandoned was not supported by substantial evidence, as the property had not been used as a gas station for over a year.

    Facts

    Petco Enterprises, Inc. operated a gasoline service station.
    S.F. Shopping Center, Inc. sought a certificate of existing use for the gasoline service station.
    The gasoline pumps had been removed from the premises.
    The building on the premises was used as a tobacco shop for more than a year before becoming vacant.
    Parkway Woods, Inc. initiated an Article 78 proceeding to review the zoning board’s determination.

    Procedural History

    Parkway Woods, Inc. commenced an Article 78 proceeding to review the zoning board’s determination.
    S.F. Shopping Center, Inc. interposed its answer without asserting the petitioner’s lack of standing.
    The Zoning Board of Appeals filed an amended answer, also without raising a standing objection.
    The Appellate Division’s order was appealed to the New York Court of Appeals.

    Issue(s)

    Whether S.F. Shopping Center, Inc. waived its right to challenge Parkway Woods, Inc.’s standing by failing to raise the issue in its initial responsive pleading.
    Whether the zoning board’s determination that the nonconforming use had not been abandoned was supported by substantial evidence.

    Holding

    Yes, because CPLR 3211(e) provides that the defense of lack of standing is waived if not raised by motion or in the responsive pleading.
    No, because the property was not used as a gasoline service station for more than one year, and the ordinance states that such non-use constitutes abandonment, regardless of the owner’s intent.

    Court’s Reasoning

    The court relied on CPLR 3211(e), which explicitly states that a defense based on lack of standing is waived if not raised in the responsive pleading or by motion. Because S.F. Shopping Center, Inc. failed to raise the issue in its initial answer, it waived the defense.
    The court also analyzed the Brookhaven ordinance, which states that a nonconforming use is abandoned if “discontinued, abandoned or not used for a period of one (1) year or more.” The court noted that the respondents conceded that the gasoline pumps had been removed and the building was used as a tobacco shop for over a year. The court reasoned that the owner’s intent, lease agreements, and presence of underground storage tanks were insufficient to demonstrate continued use as a gasoline service station. Therefore, the zoning board’s decision lacked substantial evidence. The court cited 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 in support of the principle that administrative decisions must be based on substantial evidence.

  • Matter of Corey L. v. Michael K., 45 N.Y.2d 383 (1978): Establishing Abandonment Standards in Adoption Proceedings

    Matter of Corey L. v. Michael K., 45 N.Y.2d 383 (1978)

    In adoption proceedings, abandonment by a natural parent requires legally sufficient evidence of a purposeful relinquishing of parental obligations, and the ‘best interests of the child’ cannot substitute for a finding of abandonment.

    Summary

    This case addresses the burden of proof required to terminate a natural parent’s rights in an adoption proceeding based on abandonment. The New York Court of Appeals held that while statutory amendments aimed to ease the burden of proving abandonment, they cannot override constitutional limitations on terminating parental rights. The Court emphasized that abandonment requires legally sufficient evidence of a purposeful relinquishing of parental obligations, including interest, presence, affection, care, and support. The ‘best interests of the child’ standard only applies after abandonment is established, and cannot be used as a substitute for a finding of abandonment.

    Facts

    The natural mother and father divorced in 1971, with the mother granted custody of their son, born in 1969, and the father ordered to pay $25 per week in child support. The father was in the Air Force from 1970 to 1973 and visited the child during leaves. After his discharge in October 1973, until the adoption hearings began in October 1975, he visited the child two or three times and called approximately four times. He stopped paying support in October 1972. The mother remarried in May 1973, and she and her new husband filed for adoption in May 1974.

    Procedural History

    The Family Court found the father had abandoned the child, relying on infrequent contact and failure to pay support. The court also considered a report from the Department of Social Services stating that adoption was in the child’s best interest. The Appellate Division affirmed, emphasizing that insubstantial contact does not preclude a finding of abandonment. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented was legally sufficient to establish that the natural father abandoned his child, thereby justifying the termination of his parental rights and allowing the adoption to proceed without his consent.

    Holding

    No, because the evidence did not demonstrate a purposeful abandonment of parental obligations by the natural father, and the ‘best interests of the child’ cannot be the primary factor in determining abandonment.

    Court’s Reasoning

    The court recognized the legislative intent to ease the burden of proving abandonment, but stressed that this could not override constitutional protections for parental rights. The court stated, “Even where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage”. The court emphasized that amendments to section 111 of the Domestic Relations Law were “designed to override the ‘flicker of interest’ test and thereby ease the burden on the party seeking to prove abandonment”. However, this provision only applies if a finding of abandonment is thwarted by some insignificant contact. The court reasoned that the lower courts improperly considered the period between the filing of the petition and the hearing in their abandonment determination. The court pointed out that the relevant period of alleged abandonment was a relatively short eight months following the father’s discharge from the military. The court also found the failure to furnish support significant, but not determinative, especially considering the father’s limited income during that period. The court stated that “Abandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support. The best interests of the child, as such, is not an ingredient of that conduct and is not involved in this threshold question.” The Court firmly rejected the argument that the “best interests of the child” should be paramount in determining abandonment: “Under section 111 of the Domestic Relations Law as applied to the instant facts, the consent of the natural father or an abandonment was a prerequisite to the judicial termination of his parental relationship.” Therefore, the Court reversed the Appellate Division’s order, dismissed the adoption petition, and remitted the matter to Family Court for further proceedings regarding custody or visitation.

  • Matter of Talbot G., 34 N.Y.2d 77 (1974): Defining Abandonment in Adoption Proceedings

    Matter of Talbot G., 34 N.Y.2d 77 (1974)

    Abandonment, in the context of adoption law, requires a settled intention to be rid of all parental obligations and to forego all parental rights, and mere inadequacy as a parent is not sufficient to establish abandonment.

    Summary

    This case addresses the legal standard for abandonment in adoption proceedings, specifically focusing on the actions of a divorced father. The New York Court of Appeals held that the father’s infrequent contact and inconsistent financial support did not constitute abandonment, as it did not demonstrate a settled intention to relinquish all parental obligations and rights. The court emphasized that abandonment requires more than mere parental inadequacy and that the natural parent-child relationship is jealously guarded by the courts. The decision underscores the high bar for proving abandonment in cases where parental rights are at stake.

    Facts

    Talbot G. and Susan (G.) W. divorced in 1964, with Susan receiving custody of their three children and Talbot ordered to pay child support. Talbot made inconsistent support payments and had limited contact with the children. Susan remarried Herbert W., who joined her in initiating adoption proceedings in 1972. Prior to this, Talbot visited the children in New York, made occasional phone calls, and sent birthday cards and small gifts. He was arrested for violating a support order shortly before a scheduled visit. The children expressed a desire to be adopted. Talbot paid a significant sum toward his support arrears during the proceedings.

    Procedural History

    The Family Court initially found that Talbot had abandoned his children. This decision was based on Talbot’s infrequent support payments, limited contact, and the timing of his attempts to engage with his children (occurring mostly after adoption proceedings began). The Appellate Division reversed the Family Court’s decision, finding that the petitioners had not met their burden of proving abandonment. The New York Court of Appeals affirmed the Appellate Division’s reversal, holding that Talbot’s actions did not constitute abandonment under the legal standard.

    Issue(s)

    Whether Talbot G.’s infrequent contact, inconsistent financial support, and overall conduct toward his children constituted abandonment under Section 111 of the Domestic Relations Law, thereby allowing his former wife and her new husband to adopt the children without his consent.

    Holding

    No, because Talbot’s actions, while demonstrating parental inadequacy, did not unequivocally demonstrate a settled intention to be rid of all parental obligations and to forego all parental rights, which is the standard for abandonment.

    Court’s Reasoning

    The Court of Appeals relied on the principle that abandonment requires a “settled purpose to be rid of all parental obligations and to forego all parental rights.” The court distinguished between parental inadequacy and legal abandonment, stating that the former is not sufficient to justify terminating parental rights. The court emphasized the importance of protecting the relationship between minor children and their natural parents, noting it is “jealously guarded.” Even though Talbot’s contact was sporadic and infrequent, the court found that it evinced “that modicum of attention sufficient to defeat petitioners’ burden of proving abandonment.” The court also referenced Matter of Bistany, (239 N. Y. 19, 24) stating “ [a]fter the finding by the Appellate Division adverse to the petitioners, the order under review must stand unless we are prepared to hold that by acts so unequivocal as to bear one interpretation and one only the [parent] manifested an intention to abandon the [children] forever ”. The court acknowledged Talbot’s financial difficulties and inconsistent support payments but concluded that these factors, while relevant, did not definitively prove a settled intention to abandon his children. The decision highlights the high standard required to terminate parental rights based on abandonment, requiring a clear and unequivocal relinquishment of parental responsibilities.